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Affirmed and Memorandum Opinion filed August 30, = 2007.

 

 

In The

 

Fourteenth=20 Court of Appeals

____________

 

NO. 14-06-00801-CV

____________

 

BOSTON=20 MEDICAL GROUP, INC., = Appellant

 

V.

 

MARK=20 ELLIS, = Appellee

 

 

On Appeal from the = 152nd District Court

Harris County, = Texas

Trial Court Cause = No. 03-48498

 

 

M E M O R=20 A N D U M   O P I N I O N

This is an=20 interlocutory appeal from the trial court=3Ds order=20 denying the special appearance of a nonresident corporation.  = We=20 affirm.

I.  Factual and Procedural=20 Background

Appellee=20 Mark Ellis, a Texas resident brought suit against Boston Medical=20 GroupBTexas,=20 P.A., a Texas corporation (ABoston=20 MedicalBTexas@), Dr.=20 Jacques Roy, M.D. (ADr.=20 Roy@), a Texas=20 resident, and Boston Medical Group, Inc. (ABoston=20 Medical, Inc.@), a=20 California corporation, to recover damages allegedly sustained as = a result=20 of medical malpractice.  Ellis claims that he suffered = permanent=20 injury as a result of the defendants=3D = negligent=20 care and treatment of a sexual dysfunction. 

Ellis went=20 to Boston MedicalBTexas to=20 seek medical treatment of a sexual dysfunction.  Dr. Roy = examined=20 Ellis and diagnosed him with decreased erectile function secondary = to=20 decreased blood flow.  On July 16, 2003, Dr. Roy prescribed=20 medication that Ellis was to inject into his penis when he desired = to=20 achieve an erection.  Ellis contends that he was provided = with=20 literature that was misleading and enticed him to purchase = medication sold=20 by the defendants.  Ellis purchased the medication, and = performed=20 this selfBinjection=20 on July 19, 2003.  Two days later, on July 21, 2003, Ellis = continued=20 to have an erection, so he returned to see Dr. Roy.  Dr. Roy=20 attempted to decompress the erection for approximately ten hours, = and when=20 these attempts were unsuccessful, he instructed Ellis to check = into a=20 nearby hotel.  After several hours without change, Dr. Roy = instructed=20 Ellis to go to the emergency room at Memorial Hermann Hospital, = where he=20 underwent surgical decompression.  This surgery left Ellis=20 impotent.

Ellis=20 brought suit against Boston Medical-Texas, Boston Medical, Inc. = and Dr.=20 Roy. He claims Boston Medical, Inc. is liable for actual and = punitive=20 damages based on the alleged negligence, gross negligence, and = malice of=20 its agents and employees.  After being sued, Boston=20 MedicalBTexas and=20 Dr. Roy entered general appearances and did not challenge the = personal=20 jurisdiction of the trial court over them.  However, Boston = Medical,=20 Inc. filed a special appearance alleging that the trial court = lacked=20 personal jurisdiction over it because there was no specific or = general=20 jurisdiction.  After a hearing, the trial court denied Boston = Medical, Inc.=3Ds special=20 appearance.  In this interlocutory appeal, Boston Medical, = Inc.=20 challenges the trial court=3Ds=20 jurisdictional ruling.

 

II. =20 Standard of=20 Review

Whether=20 Boston Medical, Inc.  is subject to personal jurisdiction in = Texas is=20 a question of law subject to de novo review.   See = BMC=20 Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.=20 2002).   The trial court did not issue any findings of = fact or=20 conclusions of law. Therefore, all facts necessary to support the = trial=20 court=3Ds ruling=20 and supported by the evidence are implied in favor of the trial=20 court=3Ds=20 decision.  Id. at 795.  Parties may challenge the = legal=20 and factual sufficiency of these implied factual findings. =20 Id.  In conducting a no‑evidence analysis, we = review the=20 evidence in the light most favorable to the challenged finding and = indulge=20 every reasonable inference that would support it.  See = City of=20 Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.  2005).  = We must=20 credit favorable evidence if a reasonable factfinder could and = disregard=20 contrary evidence unless a reasonable factfinder could not.=20  See id. at 827.  We must determine = whether the=20 evidence at trial would enable reasonable and fair‑minded = people to find=20 the facts at issue.  See id.  The factfinder is = the sole=20 judge of the credibility of the witnesses and the weight of their=20 testimony.  See id. at 819.

When=20 reviewing a challenge to the factual sufficiency of the evidence, = we=20 examine the entire record, considering both the evidence in favor = of, and=20 contrary to, the challenged finding.  Cain v. Bain, = 709 S.W.2d=20 175, 176 (Tex. 1986).  After considering and weighing all the = evidence, we set aside the fact finding only if it is so contrary = to the=20 overwhelming weight of the evidence as to be clearly wrong and=20 unjust.  Pool v. Ford Motor Co., 715 S.W.2d 629, 635 = (Tex.=20 1986).  The trier of fact is the sole judge of the = credibility of the=20 witnesses and the weight to be given to their testimony.  = GTE=20 Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, = 615B16 (Tex.=20 App.CHouston=20 [14th Dist.] 2001, pet. denied).  We may not substitute our = own=20 judgment for that of the trier of fact, even if we would reach a = different=20 answer on the evidence.  Maritime Overseas Corp. v. = Ellis, 971=20 S.W.2d 402, 407 (Tex. 1998).  The amount of evidence = necessary to=20 affirm a judgment is far less than that necessary to reverse a = judgment.=20  GTE Mobilnet, 61 S.W.3d at 616.

III. =20 Issues and Analysis=20

In two=20 issues, Boston Medical, Inc. challenges the trial = court=3Ds implied=20 findings of specific and general jurisdiction, and its denial of = the=20 special appearance.  More specifically, Boston Medical, Inc. = contends=20 the evidence is legally and factually insufficient  to = support the=20 trial court=3Ds order=20 denying its special appearance.  Thus, the main issue before = this=20 court is whether the evidence is legally and factually sufficient = to=20 support the trial court=3Ds implied=20 findings of jurisdiction.

The Texas=20 long‑arm statute governs Texas courts=3D = exercise=20 of jurisdiction over nonresident defendants. Tex. Civ. Prac. & Rem. = Code=20 Ann. '' = 17.041B.045=20 (Vernon Supp. 2005).  It allows courts to exercise personal=20 jurisdiction as far as the federal constitutional requirements of = due=20 process will permit.  See BMC Software, 83 S.W.3d at=20 795.  We rely on precedent from the United States Supreme = Court and=20 from other federal courts, as well as Texas decisions, in = determining=20 whether a nonresident defendant has shown that the exercise of = personal=20 jurisdiction violates federal due process guarantees. =20 Id.

Personal=20 jurisdiction over a nonresident defendant is constitutional when = two=20 conditions are met: (1) the defendant has established minimum = contacts=20 with the forum state, and (2) the exercise of personal = jurisdiction=20 comports with traditional notions of fair play and substantial=20 justice.  Id.  A nonresident defendant that = purposefully=20 has availed itself of the privileges and benefits of conducting = business=20 in Texas has sufficient contacts to allow Texas courts to exercise = personal jurisdiction over the nonresident.  Id.=20  Although not determinative, foreseeability is an = important=20 consideration in deciding whether the nonresident defendant = purposefully=20 has established minimum contacts with Texas.  Id.  = The=20 concept of foreseeability is implicit in the requirement that = there be a=20 substantial connection between the defendants and Texas arising = from their=20 conduct purposefully directed toward Texas.   See = Guardian=20 Royal Exch. Assur., Ltd. v. English China Clays, P.L.C., 815 = S.W.2d=20 223, 227 (Tex. 1991).  A defendant should not be subject to a = Texas=20 court=3Ds=20 jurisdiction based upon random, fortuitous, or attenuated = contacts. =20 BMC Software, 83 S.W.3d at 795.

Specific=20 jurisdiction exists when the claims in question arise from or = relate to=20 the defendant=3Ds=20 purposeful contacts with Texas.  Am. Type Culture = Collection Inc.=20 v. Coleman, 83 S.W.3d 801, 807 (Tex. 2002).  In = conducting a=20 specific‑jurisdiction analysis, we focus on the relationship = among the=20 defendants, Texas, and the litigation.  See Guardian = Royal,=20 815 S.W.2d at 228. For a nonresident defendant=3Ds forum=20 contacts to support an exercise of specific jurisdiction, there = must be a=20 substantial connection between those contacts and the operative = facts of=20 the litigation.  See Moki Mac River Expeditions v. = Drugg, 221=20 S.W.3d 569, 585 (Tex. 2007).  General jurisdiction, however,=20 implicates a more demanding minimum‑contacts analysis, = requiring a showing=20 that the defendants conducted substantial activities within the=20 forum.  CSR, Ltd. v. Link, 925 S.W.2d 591, 595 (Tex. = 1996)=20 (orig. proceeding). General jurisdiction exists when a defendant = has=20 Acontinuous=20 and systematic general business contacts@ = with=20 Texas so that Texas courts may exercise personal jurisdiction over = the=20 defendant even if the plaintiff=3Ds claims=20 did not arise from or relate to the defendant=3Ds=20 activities purposefully directed to Texas.  See = Helicopteros=20 Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, = 414B16, 104=20 S.Ct. 1868, 1872B73, 80=20 L.Ed.2d 404 (1984); Am. Type Culture Collection, 83 S.W.3d = at=20 809B10. =20 Boston Medical, Inc. argues that it is not subject to specific or = general=20 jurisdiction.

Boston=20 Medical, Inc. asserts the trial court erred by denying its special = appearance because: (1) references to ABoston=20 Medical Group@ = in=20 documents and at the depositions do not support jurisdiction over = Boston=20 Medical, Inc. because there is no evidence that these entities are = the=20 same; (2) this action does not arise out of or relate to any = contacts=20 between Boston Medical, Inc. and Texas necessary to show specific=20 jurisdiction; and (3) Boston Medical, Inc. lacks the substantial = contacts=20 with Texas necessary to support general jurisdiction.[1] =20 In response, Ellis contends that Boston Medical, Inc.=3Ds=20 activities were purposefully directed at Texas, both as a = corporate=20 entity, and through its agents and employees.

The=20 plaintiff bears the initial burden of pleading sufficient = allegations to=20 bring nonresident defendants within the provisions of the Texas = long-arm=20 statute. See Am. Type Culture Collection, 83 S.W.3d at = 807. =20 This minimal pleading requirement is satisfied by an allegation = that the=20 nonresident defendants are doing business in Texas.  =  See=20 Perna v. Hogan, 162 S.W.3d 648, 652B53 (Tex.=20 App.CHouston=20 [14th Dist.] 2005, no pet.).  Because Ellis pleaded in his = petition=20 that Boston Medical, Inc. conducted business in Texas and = committed torts=20 in Texas, both as a corporate entity and through its agents, Ellis = satisfied his pleading requirement.  Therefore,  the = burden=20 shifted to Boston Medical, Inc. to negate all bases of personal=20 jurisdiction raised by Ellis=3Ds=20 allegations.  See Moki Mac River Expeditions, = 221=20 S.W.3d at 574.

 A.    =20 Boston Medical, Inc. failed to negate all bases of jurisdiction.=20

Ellis asserts, = among other=20 things, that Dr. Roy was negligent while providing medical = treatment to=20 Ellis in Texas and that his negligence  proximately caused=20 Ellis=3Ds  = damages.  In his=20 live pleading, Ellis alleges the following:

(1) =    =20 Each of the physicians, nurses, nurses aides, physical = therapist[s],=20 and technicians involved in Mark Ellis=3D care was either an = employee=20 or apparent and/or ostensible agent of Boston Medical Group, Inc. = at the=20 time the cause of action occurred, and therefore Boston Medical = Group,=20 Inc. is liable for their negligence and malice. =

(2)    =20 Boston Medical Group, Inc. is independently through its agents = and=20 employees and through its failure to implement proper policies and = procedures and adequately train or make certain that its = physicians,=20 nurses, and nurses aides were trained in the diagnosis and = treatment of=20 erectile dysfunction.

(3)    =20 Boston Medical Group, Inc. supplied Mark Ellis with misleading=20 documentation stating that the intracavernosal injections were = curative in=20 the majority of their patients and the literature concerning = alternate=20 treatments was slanted in a negative way to persuade Mark Ellis to = agree=20 to purchase the injectable medication from Boston Medical Group, = Inc.=20 instead of choosing a safer alternative oral = medication.

(4)    =20 Boston Medical Group, Inc. owed a duty to Mark Ellis that he be = examined=20 by a physician expert in erectile dysfunction who would perform a = thorough=20 evaluation and offer him the safest alternative treatments.  = Boston=20 Medical Group, Inc. also owed Mark Ellis a duty to supply him with = fair=20 and balanced information concerning erectile dysfunction and the = various=20 treatment options.

 

(emphasis=20 added). Two of the individuals who allegedly treated and counseled = Ellis=20 in Texas were Robert HickmanBthe=20 medical advisor, and Dr. Jacques RoyBEllis=3Ds treating=20 physician.   Ellis contends that Boston Medical, Inc. = failed to=20 negate his allegation that Dr. Roy and the other individuals tho = treated=20 him in Texas are agents of Boston Medical, Inc.  The Texas = contacts=20 of agents or employees are attributable to their nonresident = principals.=20  See Alenia Spazio, S.p.A. v. Reid, 130 S.W.3d 201, = 214 (Tex.=20 App.CHouston=20 [14th Dist.] 2003, pet. denied). 

In its=20 special appearance, and through its evidence, Boston Medical, Inc. = failed=20 to challenge Ellis=3Ds=20 assertion that Boston Medical, Inc. maintained agents or employees = in=20 Texas.  More specifically, Boston Medical, Inc. failed to = negate that=20 Dr. RoyCthe=20 treating physicianCwas not=20 its agent or employee.[2] =20 Because Boston Medical, Inc. failed to negate this jurisdictional = fact, we=20 conclude that Boston Medical, Inc. failed to negate all bases for=20 jurisdiction alleged by Ellis.  Therefore, on this basis = alone, the=20 trial court did not err in denying Boston Medical, = Inc.=3Ds special=20 appearance.  However, even if Boston Medical, Inc. had = negated=20 Ellis=3Ds=20 jurisdictional claim of agency, the record contains other legally = and=20 factually sufficient evidence to support the trial = court=3Ds implied=20 findings in support of specific jurisdiction. 

B.     =20 The evidence is legally and factually sufficient to support the = trial=20 court=3Ds implied=20 findings in  support of specific jurisdiction. =

For a=20 Texas court to properly exercise specific jurisdiction in this = case, (1)=20 the claims in question must arise from or relate to Boston = Medical,=20 Inc.=3Ds=20 purposeful contacts with Texas; and (2) there must be a = substantial=20 connection between those contacts and the operative facts of the=20 litigation.  See Moki Mac, 221 S.W.3d at 576,=20 585.   

Ellis=20 points to the depositions of Robert Hickman and Dr. Roy as well as = the=20 verification of Thomas Messigner, Boston Medical, Inc.=3Ds agent=20 for service of process, and several documents which bear the name=20 ABoston=20 Medical Group, Inc.@  =20 In his deposition, Hickman testified that he sought employment = with=20 ABoston=20 Medical Group@[3] =20 when he came across an internet listing.  Hickman submitted = his=20 resume, and soon thereafter was contacted by a woman named = AMaribelle@ = who was=20 located in the Human Resources Department in the Cosa Mesa, = California=20 office.[4]  =20 Hickman stated that an interview was set up, and Dr. Daniel Ha, = the=20 president of the entire ABoston=20 Medical Group@ = came to=20 Houston, Texas,  to interview him.  After Hickman was = hired, the=20 clinical manager, Michael Moss came from California to train him = in=20 Houston.  Hickman stated that Moss remained in Houston for=20 approximately two weeks.  Hickman further stated that Moss = works with=20 Messigner who is the Ageneral=20 manager@ = over all=20 of the ABoston=20 Medical Group.@  =20

Hickman=20 further testified that his paychecks come from California, and = when he=20 needs to request time off, he calls an office located in = California.=20 Hickman stated that Dr. Ha was one of the individuals who = formulated the=20 prescription that was given to Ellis.  In addition, and most=20 imperatively, is that several documents produced by Ellis bear the = name=20 ABoston=20 Medical Group, Inc.,@ = including=20 the informed consent form Ellis signed on July 16, 2003,for the = medical=20 treatment.  

         =20 In its supplemental special appearance, Boston Medical, Inc. = attempted to=20 refute Hickman=3Ds=20 deposition testimony, and the documents that made reference to=20 ABoston=20 Medical Group, Inc.@ = by=20 attaching affidavits of Hickman, Dr. Ha, and Messigner.  = Boston=20 Medical, Inc.=3Ds main=20 contention is that trial court does not have specific jurisdiction = over it=20 because the claims do not arise from and are not related to any = contacts=20 between Boston Medical, Inc. and Texas, but are the contacts of = another=20 company named ABoston=20 Medical Group.@ =20 Boston Medical, Inc. asserts the following:

(1) =     There=20 is no evidence that any person involved in Ellis=3Ds care or treatment = was=20 employed by Boston Medical, Inc.;

(2)    =20 The evidence is undisputed that Boston Medical, Inc. does not = operate in=20 Texas;

(3)    =20 Ellis=3Ds injuries do not = arise out=20 of any contacts between Boston Medical Group, Inc. and Texas = because=20 Boston Medical, Inc. does not have any contacts with Texas;=20

(4)    =20 Although Ellis may have presented evidence about a connection = between a=20 company that has its headquarters in California, and the claims = made in=20 this case, there is no evidence that the company was Boston = Medical Group,=20 Inc.;

(5)    =20 Although Ellis mentions a few documents that bear the name of = Boston=20 Medical, Inc., Dr. Ha testified that he created documents with = this name=20 before the actual entity existed, and he assumed that was to be = the name=20 of the future entity but that it ultimately was not the name;=20 and

(6)    =20 Robert Hickman, the medical advisor at Boston Medical Group in = Houston,=20 Texas was not referring to Boston Medical, Inc. in California when = he was=20 asked questions but was referring to a Adifferent = entity.@

 

In his=20 affidavit, Robert Hickman, states in pertinent part:

!      =20 AI gave a deposition = on July=20 15, 2005, in which I was asked several questions about = >Boston Medical=20 Group=3D in general and not = the=20 specific entity >Boston Medical = Group,=20 Inc.=3D Likewise, my = answers=20 involved >Boston Medical=20 Group=3D generally and not=20 >Boston Medical = Group,=20 Inc.=3D I was not aware of = any=20 corporate structure or legal names of the different entities at = the time=20 of my deposition.@

!      =20 AI have read=20 Plaintiff=3Ds response to = Boston Medical=20 Group, Inc.=3Ds Special = Appearance. =20 Plaintiff=3Ds counsel = incorrectly=20 references my deposition several times as evidence of Boston = Medical=20 Group, Inc.=3Ds involvement in = Texas. For=20 instance, the response states >Mr. Hickman sought = employment=20 with BMG, Inc. [Boston Medical Group,Inc.] when he came across an = internet=20 employment listing.=3D As you can see = from the=20 question in the deposition and my response, I was asked about = >Boston Medical=20 Group=3D generally and not=20 >Boston Medical = Group,=20 Inc.=3D  I did not = seek=20 employment with >Boston Medical = Group,=20 Inc.=3D@

!      =20 AThe response also = cites my=20 deposition as evidence that Maribelle is the human resources = person at=20 Boston Medical Group, Inc. Again, I was asked about >Boston Medical=20 Group=3D in general. I do = not know if=20 Maribelle is affiliated with >Boston Medical = Group,=20 Inc.=3D@ =

!      =20 AThe response also = cites my=20 deposition as evidence that Dr. Ha is president of >Boston Medical = Group,=20 Inc.=3D However, I only = stated that=20 Dr. Ha was president of >Boston Medical=20 Group=3D generally and not=20 >Boston Medical = Group,=20 Inc.=3D Also, my statement = regarding=20 Dr. Ha was more or less a guess, and by no means did I mean to = imply an=20 affiliation between Dr. Ha and >Boston Medical = Group,=20 Inc.=3D  Dr. Ha has a = better=20 understanding of his involvement, if any, than I do.@

!      =20 AThe response also = cites my=20 deposition as evidence that Tom Messigner is the general manager = over all=20 of the >Boston Medical = Group. =20 Again, I did not know the differences between the entities. I only = referred to >Boston Medical=20 Group=3D generally in my = responses. I=20 did not state >Boston Medical = Group,=20 Inc.=3D nor did I intend = it infer it=20 [sic].  My statement regarding Tom Messigner was more or less = a=20 guess, and by no means did I mean to imply an affiliation between = Tom=20 Messigner and >Boston Medical = Group,=20 Inc.=3D Tom Messigner has = a better=20 understanding of his involvement, if any, than I do.@

!      =20 AThe response also = cites my=20 deposition as evidence that my paychecks come from Boston Medical = Group in=20 California.  After reviewing my check, I see that I was=20 mistaken.  My checks do come from California, but = >Boston Medical = Group,=20 Inc.=3D and >Boston Medical=20 Group=3D do not appear = anywhwere on=20 my direct deposit check.  A different entity is named.=20  In short, I am not paid by >Boston Medical = Group,=20 Inc.=3D@

!      =20 AThe response also = cites my=20 deposition as evidence that I call headquarters in California to = get time=20 off.  While it is true that I call California, I do not know = the name=20 of the entity that is called. My statement regarding headquarters = in=20 California was more or less a guess, and by no means did I mean to = imply=20 >Boston Medical = Group,=20 Inc.=3D Further=20 Plaintiff=3Ds counsel even = asked me if I=20 understood that there could be headquarters in Florida, to which I = responded that there could be, but I never deal with = them.@

!      =20 AThe=20 response also cites my deposition as evidence that the information = given=20 to patients comes from headquarters in California.  While it = is true=20 that the information came from California, I do not know the name = of the=20 entity that provides it. Again, my statement regarding = headquarters in=20 California was more or less a guess, and by no means did I mean to = imply=20 >Boston=20 Medical Group, Inc.=3D. . .=20 @

Thomas=20 Messigner verified the following allegations in Boston Medical,=20 Inc.=3Ds special=20 appearance:

!      =20 Plaintiff=3Ds First Amended = Petition=20 acknowledges that Boston Medical, Inc. is  a foreign = corporation with=20 its office and registered agent located in Costa Mesa, California; =

!      =20 Boston Medical, Inc. is a California corporation with its = principal place=20 of business in Costa Mesa, California;

!      =20 Boston Medical, Inc. does not have any ownership interest in any = clinic in=20 Texas;

!      =20 Boston Medical, Inc. does not and has not had a place of business = in=20 Texas;

!      =20 Boston Medical, Inc. does not maintain a registered agent in = Texas;=20

!      =20 Boston Medical, Inc. does not have an office in Texas;

!      =20 Boston Medical, Inc. does not lease any property in Texas; =

!      =20 Boston Medical Inc. does not lease any property outside of Texas = for use=20 within the state of Texas;

!      =20 Boston Medical, Inc. does not own any personal property located in = Texas;=20

!      =20 Boston Medical, Inc. does not have a telephone listing in Texas;=20 and

!      =20 Boston Medical, Inc. does not do any marketing in of Texas. =

 

In his=20 affidavit attached to the supplemental special appearance, = Messigner=20 further stated that his only affiliation with ABoston=20 Medical Group, Inc.@ = in=20 California  is that [he is] its registered agent.  He = also=20 states that although he is not employed by Boston Medical, Inc., = he has=20 personal knowledge that Michael Moss and Maribelle Flores = are not=20 employed by Boston Medical, Inc.  Finally, in reference to = the=20 several documents that bear the name ABoston=20 Medical Group, Inc.,@ = including=20 the informed consent form Ellis signed, Boston Medical, Inc. = offered Dr.=20 Ha=3Ds=20 affidavit as an explanation.  In his affidavit, Dr. Ha = states:=20

AI created certain = handouts=20 that bear the name >Boston Medical = Group,=20 Inc.=3D At the time[] I = prepared=20 these documents, that entity did not exist, and I assumed that=20 >Boston Medical = Group,=20 Inc.=3D would end up being = the name=20 of the corporation for which I was preparing the = documents.  =20 However, the name ABoston Medical = Group,=20 Inc.=3D was not used for = that=20 entity.  Unfortunately, when I revised the documents, I did = not go=20 back to change the name for the appropriate entity.@

 

In his=20 affidavit, Hickman stated that he is not paid by Boston Medical = Group,=20 Inc.; however, he failed to reveal the name of the entity in = California=20 that actually does compensate him for his services.  Although = Hickman=3Ds=20 affidavit contradicts his deposition, the trial court, as the sole = judge=20 of the credibility of the witness, could have determined that = Hickman=20 meant ABoston=20 Medical Group, Inc.@ = when=20 making reference to  ABoston=20 Medical Group@ = generally=20 during his deposition. See Huynh, 180 S.W.3d at 620; = Puri v.=20 Mansukhani, 973 S.W.2d 701, 710B711 (Tex.=20 App.CHouston=20 [14th Dist.] 1998, no pet.) (refusing to comply with = appellee=3Ds request=20 to reevaluate appellee=3Ds=20 credibility as the trial court is the sole judge of credibility = and=20 resolves all conflicts in the special appearance evidence).  = In this=20 case, the trial court impliedly resolved all conflicts in the = evidence=20 against Boston Medical, Inc., and in favor of Ellis by denying the = special=20 appearance. 

Moreover,=20 in reviewing Dr. Ha=3Ds=20 affidavit, the trial court could have discounted his explanation = of why=20 certain documents, including Ellis=3Ds consent=20 form, bear the name ABoston=20 Medical Group, Inc.@  =20 Although Dr. Ha specifically stated that ABoston=20 Medical Group, Inc.@ = was not=20 the actual name, he (like Hickman) also failed to reveal the name = of=20 the  entity that he claims should have been used.  = Finally, as=20 to Maribelle Flores (the individual in the Human Resources = Department in=20 the Cosa Mesa office who contacted Hickman for an interview) and = Michael=20 Moss (the clinical manager who came from California to train = Hickman), the=20 trial court could have found impliedly that these individuals were = connected to the ABoston=20 Medical Group, Inc.@ = office in=20 Cosa Mesa, California despite Messigner=3Ds=20 affidavit.  Likewise, the trial court could have concluded = that=20 Messigner lacks credibility.  See Tex. R. Civ. P. =  120a(3);=20 see also Navasota Res., Ltd. v. Heep Petroleum, Inc., 212 = S.W.3d=20 463, 469 (Tex. App.CAustin=20 2006, no pet.) (refusing to disturb the trial court=3Ds=20 resolution of evidentiary conflicts and issues of credibility in = special=20 appearance context); Ennis v. Loiseau, 164 S.W.3d 698, 704 = (Tex.=20 App.CAustin=20 2005, no pet.) (concluding that statements by corporate=20 defendant=3Ds=20 president in special appearance affidavits could be excluded as = conclusory=20 in determining personal jurisdiction); Wright v. Sage Eng'g, = Inc.,=20 137 S.W.3d 238, 250 n. 8 (Tex. App.CHouston=20 [1st Dist.] 2004, pet. denied) (stating that special appearance = affidavits=20 must be Adirect,=20 unmistakable, and unequivocal as to the facts sworn = to.@). =20 Although he states that he is not employed by ABoston=20 Medical Group, Inc.@and has no=20 connection with that entity other than being its registered agent, = he=20 claims to have personal knowledge that Moss and Flores = neither work=20 for nor are they employed by ABoston=20 Medical Group, Inc.@  To=20 avoid being deemed conclusory, an affidavit must contain specific = factual=20 bases upon which the stated conclusions are drawn.  = Nichols v.=20 Lightle, 153 S.W.3d 563, 570 (Tex. App.CAmarillo=20 2004, pet. denied).  Messigner does not explain how he has = such=20 personal knowledge of Moss=3Ds and=20 Flores=3Ds lack of=20 employment with Boston Medical Group, Inc.  The trial court = could=20 have found that Messigner himself does  not work for the = company and=20 does not know who does or does not work for Boston Medical Group,=20 Inc.  See Humphreys v. Caldwell, 888 S.W.2d 469, 470 = (Tex.=20 1994) (stating that A[m]erely=20 reciting that an affidavit is made on personal knowledge is=20 insufficient.@);=20 Urban v. Barker, No. 14-06-00387-CV, 2007 WL 665118, at=20 *2B3 =20 (Tex. App.CHouston=20 [14 Dist.] Mar. 06, 2007, no pet.) (mem. op.) (finding affidavit = in=20 support of special appearance insufficient under Rule 120a(3) = where=20 affidavit revealed no facts on how affiant acquired personal = knowledge as=20 to the statements made in her affidavit).

In=20 conducting a legal-sufficiency review, we must credit favorable = evidence=20 if a reasonable factfinder could, and disregard contrary evidence = unless a=20 reasonable factfinder could not.  Wilson, 168 S.W.2d = at=20 822.  In reviewing a factual-sufficiency challenge, we may = not=20 substitute our own judgment for that of the trier of fact, even if = we=20 would reach a different answer on the evidence.  =  Maritime=20 Overseas, 971 S.W.2d at 407.  Therefore, applying the = applicable=20 standards of review, we conclude that the evidence is legally and=20 factually sufficient to support the trial court=3Ds implied=20 finding that Boston Medical, Inc. was the entity to which Hickman = referred=20 in his deposition, and that (1) the claims in question arise from = or=20 relate to Boston Medical, Inc.=3Ds=20 purposeful contacts with Texas; and (2) there is a substantial = connection=20 between these contacts and the operative facts of this litigation. =  See Moki Mac, 221 S.W.3d at 576, 585.  = Accordingly, we=20 overrule both of Boston Medical, Inc.=3Ds issues=20 on appeal, and we affirm the trial court=3Ds order=20 denying Boston Medical, Inc.=3Ds special=20 appearance.

 

 

 

 

/s/     =20 Kem Thompson Frost

Justice

 

 

Judgment=20 rendered and Memorandum Opinion filed August 30, 2007.

Panel=20 consists of Justices Frost, Seymore, and Guzman.

 

 

 

 

 

 

 


[1]   On appeal, Boston Medical, = Inc. has=20 not argued that the trial court=3Ds exercise of personal jurisdiction over = it would=20 violate traditional notions of fair play and substantial justice=20 -B the second prong in the jurisdictional=20 analysis.  See Schlobohm v. Schapiro, 784 S.W.2d 355, = 356=20 (Tex. 1990).  Thus, we do not address this prong in this = opinion.=20

[2]  We note that as to Robert = Hickman, Boston=20 Medical, Inc. attached an affidavit to its supplemental special = appearance=20 attempting to show that Hickman was not affiliated with = ABoston Medical Group, Inc.,@ but rather was affiliated with some = other unnamed=20 entity that is generally known as ABoston Medical Group.@  Therefore, we conclude that, to = this=20 extent, Boston Medical, Inc. produced evidence to negate=20 Hickman=3Ds agency status, placing the burden back = on=20 Ellis.  We discuss Hickman=3Ds status with ABoston Medical Group, Inc.@ in further detail below. =

[3]  As noted below, Hickman disputes = (in an=20 affidavit) that this is the same entity as ABoston Medical Group, Inc.@  However, the trial court, as the = finder of=20 fact and judge of the credibility of the witnesses, could have = disregarded=20 Hickman=3Ds affidavit and made the implied finding = that=20 Hickman was indeed connected to ABoston Medical Group, Inc.@ as an employee or agent, and not with = some other=20 ABoston Medical Group@ entity that he failed to identify by = name. See=20 Huynh, 180 S.W.3d at 620.

[4]  Notably, Boston Medical Group,=20 Inc.=3Ds principal place of business is also in = Cosa=20 Mesa, = California.

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